1.      Heard Vivek Anand Anthony Britto, Advocate, for the complainant, Mr. Aditya Narain, Advocate for opposite parties-2 & 3 and Mr. Pragalbh Bhardwaj, Advocate for opposite party-3.

2.      Parminder Singh Pental has filed above complaint for directing the opposite parties to (i) handover vacant possession of the schedule property; (ii) pay compensation of Rs.4960000/- for delay compensation from April, 2011 to May, 2016; (iii) pay future compensation @ Rs.80000/- per month from June, 2016 till delivery of possession; (iv) execute sale deed of the schedule property in favour of the complainant; (v) pay Rs.50 lacs as compensation for mental agony and hardship; (vi) pay interest @ 15% on the total amount paid by the complainant from December, 2010 till actual date of possession; (vii) pay Rs.5 lacs towards litigation cost; (viii) declare the demand made by the opposite parties for delayed payment, as illegal and unlawful; (ix) pay all charges as and when demanded by Palm Drive Condominium Association for schedule property till the date of possession; and (x) and other reliefs which deems fit in the facts and circumstances of the case.

3.      The complainant stated that opposite party-1 approached the complainant in U.S.A. and represented that opposite parties-2 is its associate company and opposite parties-2 & 3 are the land owners. Opposite party-1 had entered into an agreement with opposite party-3 for the purpose of development of the land of opposite parties-2 & 3. Opposite party-1 also represented that they would construct high end apartments, luxury villas, recreational facilities, landscape gardens with car parking spaces and other facilities. Allured by the above assurances, the complainant applied for booking of a pent house, vide application dated 19.11.2007 by depositing an amount of Rs.2179925/-. The complainant was allotted pent house No.L-PH-02, 16^th floor, Tower/Block No.L in Group Housing Complex “The Palm Drive”, Gurgaon, Haryana having a super area of 3575 sq. ft.  with two car parking spaces, for a total consideration of Rs.21228465/-. The builder buyer agreement was executed between the complainant and the opposite parties on 04.03.2008. As per clause 14 of the agreement, possession was to be delivered by December, 2010 with a grace period of 90 days for obtaining the occupation certificate of the project. In case of delay in handing over the possession, the opposite parties were required to pay delay compensation @ Rs.5/- per sq. ft. per month on the super area. The payment was to be made as per construction linked plan and for which no specific date was given in the agreement. As per clause 35 of the agreement, the opposite parties were required to issue demand notices on the basis of construction. The complainant paid the instalments as and when demanded by the opposite parties. Instead of sending the demand notices through registered post or speed post, the opposite parties send the demand notices through a private courier due to which the demand notices could not be received in time. However, the complainants paid the instalments in time. On 08.05.2015, opposite party-1 sent an email intimating the complainant that the super area of the pent house has been enhanced from 3575 sq. ft. to 3699.73 sq. ft. and the complainant paid the cost of the enhanced area. The complainant paid a total amount of Rs.23138633/-. However, the opposite parties failed to handover the possession of the pent house within the stipulated period, despite various communications made by the complainant. On 17.08.2015, the complainant received a demand notice of Rs.209438/- towards delay payment. The complainant replied to the said demand notice requesting the opposite parties to prove that the demand letters were sent in time. The complainant also raised a counter claim of Rs.4640000/- for delay in handing over the possession. The complainant also sent a legal notice dated 15.10.2015 in this regard, which was replied to by the opposite parties on 30.12.2015. If there was any delay in payment by the complainant, it was due to delay in receipt of demand notice. The Palm Drive Condominium Association has raised a demand of common area electricity bill of Rs.22787/- from 15^th October, 2015 to 4^th March, 2016 as the property is still in the possession of the opposite parties. The opposite party has not handed over the possession despite expiry of more than five years from the schedule date of delivery. Thus, the complainant filed the instant consumer complaint on 03.06.2016.

4.      The complaint was contested by the opposite parties by filing the written versions. Opposite parties-1 & 2 filed the joint written version on 31.08.2016 stating that they never approached the complainant, rather he himself approached the opposite parties through his broker in USA. The opposite parties did not make any false promise and whatever they promised is mentioned in the agreement. It is nowhere provided in the agreement that the demand notices cannot be sent by courier. The complainant has not raised this issue earlier and now raising the issue to cover up the delay in making the payment. The super area was enhanced in terms of clause 1.1 (a) of the agreement which provided that the super area was tentative and could be changed. As the complainant defaulted in making the timely payment, he is not entitled for delay compensation and intimation in this regard was sent to him vide email dated 08.05.2015. The fact that the schedule property is still in the possession of the opposite party and the electricity bill of the common area is to be deposited by the opposite parties is denied. As per agreement, time is the essence for making the payment only and not for delivery of possession. Possession was to be handed over subject to force majeure conditions. The complainant defaulted in making the timely payment as per construction linked plan opted by him and an amount of Rs.372232/- is still payable by him including delay charges. The complainant has supressed the material fact from the Commission that the opposite parties have already sent the offer of physical possession on 27.04.2015 subject to making balance payment. There is no deficiency in service on the part of the opposite parties-1 & 2 and the complaint is liable to be dismissed.

5.      Opposite parties-1 & 2 also took the preliminary objection stating that the complainant is a resident of USA, he booked the pent house in USA and the agreement was also executed in the USA. The Consumer Protection Act, 1986 does not apply to a person residing outside India. The complainant has booked the apartment in question for commercial purpose. The complaint is time barred as the cause of action arose on 04.03.2008 when the agreement was executed or latest in December, 2010 when the possession was to be handed over. The complainant is aggrieved by demand of Rs.418577/-. The National Commission does not have the pecuniary jurisdiction to entertain the complaint involving pecuniary value of Rs.418577/-.

6.      Opposite party-3 filed its separate written version on 26.08.2016 stating that its role is limited to providing the land for the project and the complainant has not sought any relief against opposite party-3. There is no privity of contract between the complainant and OP-3. Opposite party-3 is also not a party to the apartment buyer agreement and the agreement was executed between the complainant and opposite parties-1 & 2. Opposite party-3 has a separate agreement dated 18.03.2006 with opposite party-1 whereby it was agreed that opposite party-1 shall be entitled for 65% of the total built up area and opposite party-3 shall be entitled for 35% of the total built up area of the complex. In the agreement dated 18.03.2006 it is specifically mentioned that the entire responsibility of construction and development of the project would be of opposite party-1. OP-3 is neither necessary nor proper party to the complaint. No communication was made between the complainant and opposite party-3 regarding completion and handing over possession of the pent house. OP-3 is not in possession of the property as alleged by the complainant. Opposite party-3 came to know about the dispute between the complainant and opposite parties-1 & 2 only after receipt of notice of the complaint. Complaint is liable to be dismissed for mis-joinder of opposite party-3.

7.      The complainant filed rejoinder to the reply filed by opposite parties-1 & 2, Affidavit of Evidence of Mr. Santosh Kumar Singh as also affidavit of admission/denial of the documents. Opposite parties-1 & 2 filed Affidavit of Evidence of Ms. Monika Balhara. Opposite party-3 filed Affidavit of Evidence of Mr. Pradeep Garg and the affidavit of admission/denial of the documents. Parties also filed short synopsis of their arguments.

8.      We have considered the arguments of the counsel for the parties and examined the record. It is relevant to mention that on 09.10.2017, this Commission has directed the opposite parties to deliver possession of the apartment in question without prejudice to the rights and contentions of the parties subject to the complainant paying the admitted balance amount and depositing the disputed amount with this Commission. In compliance of the order dated 09.10.2017, the complainant has taken over possession in 2018. Therefore, the complainant deleted the prayer for delivery of possession and filed the amended prayer clause on 11.09.2023.

9.      Now, the only dispute remains to be decided is the delay in handing over the possession. Under clause 14 of the builder buyer agreement, it is specifically mentioned that the possession would be delivered by December, 2010 with a grace period of 90 days, subject to the complainant complying with all terms and conditions thereof. Alongwith the written statement, opposite parties-1 & 2 have annexed copy of the statement of account. From the statement, it is clear that although the complainant has defaulted many times in making the timely payment but the opposite parties have charged interest on delay payment for every default. After receiving the delay charges, opposite parties-1 & 2 cannot take the stand that they are not liable to handover the possession within the stipulated period. When opposite parties-1 & 2 have charged penalty for delay in making the payment, the complainant is also entitled for compensation for delay in handing over the possession. Opposite parties-1 & 2 have taken an objection that the complainant has booked the flat for commercial purpose, but no evidence has been adduced to substantiate the allegation. Regarding limitation, since the possession was not handed over to the complainant till filing of the complaint, the cause of action was continuing. Regarding territorial jurisdiction, as the property in dispute is situated in the territory of India, the complaint is maintainable with this Commission. As the cost of the pent house is Rs.21228465/-, the National Commission has the pecuniary jurisdiction to entertain the complaint.

ORDER

          In view of the aforesaid discussion, the complaint is partly allowed against opposite parties-1 & 2 with cost of Rs.50000/-. They are directed to pay compensation to the complainant in the form of interest @ 6% p.a. on the amount deposited by the complainant from the due date of possession i.e. 01.04.2011 till the date of offer of possession. If any amount is payable by the complainant after adjusting delay compensation as on the date of offer of possession, opposite parties-1 & 2 shall be entitled to charge interest @ 9% from the complainant. After settlement of the account, opposite parties 1 & 2 shall execute the conveyance deed in favour of the complainant within a period of two months. As no relief is sought against opposite party-3, complaint qua opposite party-3 is dismissed.  Above directions will be complied with within a period of two months from the date of this judgment.